Spiva v. Palmer
| Decision Date | 01 July 2013 |
| Docket Number | Case No. 3:12-cv-00252-MMD-WGC |
| Parties | JAMES E. SPIVA, Petitioner, v. JACK PALMER, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro se. Before the court is respondents' motion to dismiss (dkt. no. 8). Petitioner has opposed the motion (dkt. no. 17), and respondents have replied (dkt. no. 18).
On February 1, 2007, petitioner entered a no contest plea to three counts of attempted lewdness with a minor under the age of fourteen (exhibits to motion to dismiss, dkt. no. 8, exh. 48).1 On July 13, 2007, the state district court sentenced petitioner to a term of forty-eight to one hundred twenty months on each of the three counts, all three to run consecutively and imposed a term of lifetime supervision (exh. 52 at 34-35, exh. 53).
Petitioner filed a notice of appeal on August 9, 2007 (exh. 54). His fast-track statement on appeal presented a single issue for the Nevada Supreme Court's review; he argued that the court abused its sentencing discretion in this case (exh. 61 at 5).The Nevada Supreme Court affirmed the state district court on March 27, 2008, and remittitur issued April 22, 2008 (exhs. 65, 66).
On July 30, 2008, petitioner filed a proper person petition for writ of habeas corpus in state district court (exh. 67). The state district court issued an order appointing counsel on February 18, 2010 (exh. 86), and counsel filed a supplemental petition on May 18, 2010 (exh. 90).2 The state district court conducted an evidentiary hearing on one issue: whether petitioner's counsel was ineffective for failing to investigate the defenses to charges (exh. 101). After an evidentiary hearing, the state district court denied the petition and entered its findings of fact, conclusions of law and judgment on August 24, 2011 (exhs. 101, 102).
Petitioner filed a notice of appeal on September 2, 2011, and a fast-track statement of appeal (exh. 112). The Nevada Supreme Court affirmed the state district court's denial of the petition on April 12, 2012 (exh. 119). Remittitur issued on May 9, 2012 (exh. 120).
Petitioner handed his federal petition to a correctional officer for mailing on May 3, 2012 (dkt. no. 6). This Court denied petitioner's motion for appointment of counsel on September 6, 2012 (dkt. no. 5). Respondents argue in their motion to dismiss that the petition should be dismissed because the four grounds are either unexhausted, procedurally defaulted or barred by Tollett v. Henderson, 411 U.S. 258, 267 (1973).
A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the statecourts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
A habeas petitioner must "present the state courts with the same claim he urges upon the federal court." Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications of a claim, not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276). To achieve exhaustion, the state court must be "alerted to the fact that the prisoner [is] asserting claims under the United States Constitution" and given the opportunity to correct alleged violations of the prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) "provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). "[G]eneral appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to state caselaw that applies federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
A claim is not exhausted unless the petitioner has presented to the state court the same operative facts and legal theory upon which his federal habeas claim is based. Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met when the petitioner presents to the federal court factsor evidence which place the claim in a significantly different posture than it was in the state courts, or where different facts are presented at the federal level to support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984).
"Procedural default" refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds, instead of on the merits. A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
The Coleman Court stated the effect of a procedural default, as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The procedural default doctrine ensures that the state's interest in correcting its own mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003).
To demonstrate cause for a procedural default, the petitioner must be able to "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). Ineffective assistance of counsel may satisfy the cause requirement to overcome a procedural default. Murray, 477 U.S. at 488. However, for ineffective assistance of counsel to satisfy the causerequirement, the independent claim of ineffective assistance of counsel, itself, must first be presented to the state courts. Murray, 477 U.S. at 488-89. In addition, the independent ineffective assistance of counsel claim cannot serve as cause if that claim is procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). With respect to the prejudice prong of cause and prejudice, the petitioner bears:
the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.
White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982). If the petitioner fails to show cause, the court need not consider whether the petitioner suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Roberts v. Arave, 847 F.2d 528, 530 n.3 (9th Cir. 1988).
The United States Supreme Court has held that "when a criminal defendant has solemnly admitted in open court that he is, in fact, guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997) (overruled on other grounds in U.S. v. Castillo, 496 F.3d 947 (9th Cir. 2007)). A prisoner's guilty plea breaks the chain of events that precedes the plea in the criminal process, and, as such, precludes the prisoner from raising independent claims relating to the deprivation of constitutional rights that allegedly occurred prior to the entry of plea. Burrows v. Engle, 545 F.2d 552, 553 (6th Cir. 1976).
United States v. Broce, 488 U.S. 563, 569 (1989).
When a petitioner has entered a guilty plea then subsequently seeks to claim his counsel rendered ineffective assistance, such claim is limited to the allegation that defense counsel was ineffective in advising petitioner to plead guilty. Fairbank v. Ayers, ...
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